When the demonstrators reached Dallas City Hall, Johnson poured kerosene on the flag and set it on fire. During the burning of the flag, demonstrators shouted such phrases as, "America, the red, white, and blue, we spit on you, you stand for plunder, you will go under," and, "Reagan, Mondale, which will it be? Either one means World War III." No one was hurt, but some witnesses to the flag burning said they were extremely offended. One witness, Daniel E. Walker, received international attention when he collected the burned remains of the flag and buried them according to military protocol in his backyard.[1]

Johnson was charged with violating the Texas law that prohibits vandalizing respected objects (desecration of a venerated object). He was convicted, sentenced to one year in prison, and fined $2,000. He appealed his conviction to the Fifth Court of Appeals of Texas, but he lost this appeal. The Texas Court of Criminal Appeals would then see his case. This was the highest court in Texas that would see Criminal Appeals. That court overturned his conviction, saying that the State could not punish Johnson for burning the flag because the First Amendment protects such activity as symbolic speech.

The court said, "Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol." The court also concluded that the flag burning in this case did not cause or threaten to cause a breach of the peace.

Texas asked the Supreme Court of the United States to hear the case. In 1989, the Court handed down its decision.[2]

The Supreme Court's decision

The opinion of the Court came down as a controversial 5-4 decision, with the majority opinion delivered by William J. Brennan, Jr. and Justices Marshall, Blackmun, Scalia, and Kennedy joining Brennan, with Kennedy also writing a concurrence.

The Court first considered the question of whether the First Amendment protected non-speech acts, since Johnson was convicted of flag desecration rather than verbal communication, and, if so, whether Johnson's burning of the flag constituted expressive conduct, which would permit him to invoke the First Amendment in challenging his conviction.

The Court rejected "the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea," but acknowledged that conduct may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments." In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court asked whether "an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it."

The Court found that, "Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." The court concluded that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."

Texas had conceded, however, that Johnson's conduct was expressive in nature. Thus, the key question considered by the Court was "whether Texas has asserted an interest in support of Johnson's conviction that is unrelated to the suppression of expression."

At oral argument, the state defended its statute on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.

As to the "breach of the peace" justification, however, the Court found that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag," and Texas conceded as much. The Court rejected Texas's claim that flag burning is punishable on the basis that it "tends to incite" breaches of the peace by citing the familiar test of Brandenburg v. Ohio that the state may only punish speech that would incite "imminent lawless action," finding that flag burning does not always pose an imminent threat of lawless action. The Court noted that Texas already punished "breaches of the peace" directly.

Kennedy's concurrence

Justice Kennedy wrote a concurrence with Brennan's opinion.[3] Kennedy wrote:

For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours. The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.[4]

Rehnquist's dissent

Brennan's opinion for the court generated two dissents. William H. Rehnquist, joined by two other justices, argued that the "unique status" of the flag "justifies a governmental prohibition against flag burning in the way respondent Johnson did here." Rehnquist wrote,

The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

However, the Johnson majority found the lack of evidence for flag protection in the Constitution that necessitated the claim of "uniqueness" to counter indicate protection of the flag from free speech. They answered the "uniqueness" claim directly: "We have not recognized an exception to [bedrock First Amendment principles] even where our flag has been involved...There is, moreover, no indication -either in the text of the Constitution or in our cases interpreting it- that a separate juridical category exists for the American flag alone...We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment."

Rehnquist also argued that flag burning is "no essential part of any exposition of ideas" but rather "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others." He goes on to say that he felt the statute in question was a reasonable restriction only on the manner in which Johnson's idea was expressed, leaving Johnson with, "a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy." He quotes a 1984 Supreme Court decision in City Council of Los Angeles v. Taxpayers for Vincent, where the majority stated that, "the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places."

Stevens' dissent

Justice John Paul Stevens also wrote a dissenting opinion. Stevens argued that the flag "is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations...The value of the flag as a symbol cannot be measured." Stevens concluded, therefore, that "The case has nothing to do with 'disagreeable ideas.' It involves disagreeable conduct that, in my opinion, diminishes the value of an important national asset," and that Johnson was punished only for the means by which he expressed his opinion, not the opinion itself.

Subsequent developments

The Court's decision invalidated laws in force in 48 of the 50 states. More than two decades later, the issue remained controversial, with polls suggesting that a majority of Americans still supported a ban on flag-burning.[5] Congress did, however, pass a statute, the 1989 Flag Protection Act, making it a federal crime to desecrate the flag. In the case of United States v. Eichman, 496 U.S. 310 (1990),[6] that law was struck down by the same five person majority of justices as in Johnson (in an opinion also written by Justice Brennan). Since then, Congress has considered the Flag Desecration Amendment several times. The amendment usually passes the House of Representatives, but has always been defeated in the Senate.[citation needed] The most recent attempt occurred when S.J.Res.12[7] failed by one vote on June 27, 2006.